[2022] KEHC 14665 (KLR)

Republic v Vignel & another (Criminal Case 34 of 2020) [2022] KEHC 14665 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14665 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case 34 of 2020

KW Kiarie, J

November 3, 2022

Between

Republic

Prosecution

and

Magero Ochieng Vignel

1st Accused

Uzrah Anyango Ochieng

2nd Accused

Judgment

1. Magero Ochieng Vignel and Uzrah Anyango Ochieng are charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 5th and 6th of August 2020, at Andiwo village in Ndhiwa Sub County of Homa Bay County, murdered FM.

3. FM, the deceased, was a child aged about 21/2 years. The accused were her parents who allegedly beat her to death.

4. Both accused denied any involvement in her death.

5. The issues for determination are:a.Whether either accused or both caused the death of the deceased or not; andb.Whether the offence of murder was proved.

6. The evidence on record does not point to the involvement of the second accused. If anything, it tended to exonerate her. I therefore acquit her of the offence of murder and set her free unless if otherwise lawfully held.

7. MAO (PW1) is a child aged six years at the time of her testimony and was aged 41/2 at the time of the offence. She testified through an intermediary. Her testimony was that the 1st accused who is the father of the deceased beat the latter using a cane all over her body. Thereafter, when the deceased “slept”, the accused placed her on the seat. M did not wake up again after she “slept.”

8. This child struck me as either a slow learner or she was awed by her presence in court. Although she may not have been coherent, she appeared truthful. Her evidence is however that of a child of tender years. In the Court of Appeal case of Onserio v Republic [1985] KLR 618, it was held:An accused can only be convicted on the evidence of a child of tender years if corroborated by other material evidence in support thereof implicating him as set out in section 124 of the Evidence Act.In the instant I will endeavour to establish if the evidence of this witness is corroborated by some material evidence on record.

9. The first accused in his defence contended that the child had fallen from a bench in the day while playing. He was supported in this contention by his wife, his co-accused. This contention was however at variance with the medical evidence.

10. Dr Peter Ogola (PW3) testified that when he performed post mortem of the deceased, he observed the following:a.Abrasions with collection of blood beneath the skin of the right shoulder;b.Abrasions with collection of blood on the right chest anteriorly;c.Multiple healed abrasions all over the body;d.Bleeding inside the right shoulder which extended to the right side of the neck;e.Bleeding below the scalp on the right side of the head; andf.Brain contusion.He was of the opinion that the cause of death was severe head injury.

11. Pamela Anyango Ongwayo (PW2) practises alternative medicine. Her evidence was that on August 6, 2020 at about 1:30 am the accused called her and informed her that his child was unwell. Since she had a bad leg, she asked him to take the child to her. The child was taken at 3 am The child was dead. She escorted the appellant back to his home. In the house she found broken pieces of sticks. The accused enquired from her if beating a person can cause death.

12. The evidence of these two witnesses in my view corroborate that of MAO (PW1). The medical evidence established that the deceased had injuries all over her body while Pamela Anyango Ongwayo’s (PW2) established that sticks were used, just as the minor had testified.

13. The defence of the first accused is not convincing. There is no way he can convince the court that he asked a child aged 21/2 years to go out at 10 p.m. to relieve herself. In any case, the medical evidence contradicted his evidence about the injuries. I therefore, have no doubts in my mind that the injuries that caused the death of the deceased were caused by the first accused.

14. In order for a conviction for the offence of murder to be founded on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law dictionary, 10th Edition malice aforethought is defined as:The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).

15. Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—a.an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b.knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c.an intent to commit a felony;d.an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

16. In the instant case, no evidence of malice aforethought was adduced. I therefore, find that the prosecution has not proved the offence of murder against the accused person. However, the prosecution has proved beyond any reasonable doubt the lesser offence of manslaughter. I accordingly reduce the charge of murder to that of manslaughter. I acquit the accused of the charge of murder. I however find him guilty and convict him of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

DELIVERED AND SIGNED AT HOMA BAY THIS 3RD DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE